#16841 - Structure Of Defended Claims And Glossary - Civil Litigation

The structure of defended claims

Glossary

After the event insurance (AEI)

An insurance policy taken out after the matters (‘the event’) which are the subject of the claim have arisen to provide cover for the party’s own disbursements and any liability for the other side’s costs should he lose his claim. This is often purchased when entering into a CFA (see below) in respect of costs not covered by the CFA.

Allocation

The assignment by the court of a claim to the appropriate track; small claims, fast track or multi-track, depending largely upon the value of the claim.

Alternative Dispute Resolution (ADR)

A collective description of methods of resolving disputes other than through the normal trial process and involving an independent third party. Arbitration, mediation, expert determination and judicial appraisal are all types of ADR.

Application notice

Form (N244) in which a party makes an interim application to the court, stating the order sought and why.

Before the event insurance (BEI)

Also known as legal expenses insurance. This provides the policy holder with an indemnity (up to the financial limit specified) for his legal fees if he becomes involved in litigation.

Case Management Conference (CMC)

A hearing at which the court will review the parties’ preparation of the case and give directions for its future conduct.

Civil Procedure Rules 1998 (CPR)

The procedural code governing civil litigation, with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

Claimant

The party who makes the claim.

Claim Form

The document completed by the Claimant to start legal proceedings. Proceedings are commenced on the date the court issues the Claim Form by sealing it with the court seal.

Claim Notification Form (CNF)

The form completed by the Claimant and sent to the Defendant/its insurer at the beginning of Stage 1 of the pre-action protocols for low value personal injury claims in road traffic accidents and employers’ liability and public liability claims.

Conditional Fee Agreement (CFA)

Agreement between solicitor and client under which the solicitor receives no, or less than normal, payment if the case is lost but higher than normal payment (the success fee) if the case is won. Commonly known as a ‘no win no fee agreement’ and often used to fund personal injury claims.

Contingency fees

A sum payable only if the client succeeds in a claim. This is usually expressed as a percentage of the money recovered. CFAs and DBAs are forms of contingency fees.

Costs between the parties

Costs that may be awarded between the parties in litigation. The losing party will normally have to pay their opponent’s costs. The amount will either be agreed between the parties or assessed by the court.

Costs management

The process through which the courts may manage both the steps to be taken and the costs to be incurred by the parties to litigation in order to further the overriding objective of dealing with cases justly and at proportionate cost. This is done on the basis of detailed costs budgets, prepared by the parties and agreed or approved by the court, which are then referred to when making decisions on the steps needed to prepare the case for trial.

Costs on the standard basis

Assessment of costs between the parties will be on the standard basis unless the court orders otherwise. This means that costs must be reasonably incurred and reasonable in amount and only those proportionate to the matters in issue will be allowed. The benefit of any doubt is given to the paying party. Costs recoverable on this basis are likely to be less than solicitor and client costs and the client has to make up the shortfall.

Costs on the indemnity basis

The court may award costs between the parties on the indemnity basis to penalise the paying party for acting unreasonably. Costs on this basis must still be reasonably incurred and reasonable in amount but do not have to be proportionate. The benefit of any doubt is given to the receiving party.

Counterclaim

A claim brought by a Defendant in response to the Claimant’s claim which is included in the same proceedings as the Claimant’s claim.

County Court Money Claims Centre (CCMCC)

The administrative centre through which County Court claims for a specified or unspecified amount of money are issued.

Damages

A sum of money awarded by the court or agreed by the parties as compensation to be paid to the Claimant. In a personal injury claim, for example, damages may comprise general damages for pain and suffering and loss of amenity and special damages for past financial losses.

Damages Based Agreements

An agreement for advocacy, litigation or claims management services which provides for payment for the service to be determined by reference to the amount of compensation obtained.

Default judgment

Judgment obtained without there being a trial of the issues as a result of the Defendant’s failure to act/participate in the proceedings.

Defence

The Defendant’s Statement of Case and the response to the Particulars of Claim. CPR 16 sets out matters which must be included.

Defendant

The party against whom a claim is made.

Directions

Court orders setting out the steps to be taken by the parties and the timetable for the future conduct of the claim.

Directions questionnaire

The form the court requires the parties to complete following their receipt of the notice of proposed allocation which asks for information about the nature of the case and the evidence required at trial. The court will use it to decide to which track to allocate the case and to consider further directions.

Disclosure

The process by which the parties to a claim state that a relevant document exists or has existed. This is usually done by serving a list of documents. See CPR 31 for what must be disclosed.

Filing

Delivering a document to the court office. The CPR makes clear which documents should be filed and when.

Freezing injunction

An interim order restraining a party from dealing with assets or taking them out of the country.

Indemnity principle

Although, generally, the loser in litigation pays the winner’s costs, the winner cannot claim more from the loser than his solicitor and client costs. This is known as the indemnity principle - the winner is entitled to an indemnity relating to the costs he has incurred (but no more).

Injunction

A court order prohibiting a person from doing something or requiring a person to do something. This can be an interim order (ie pending a final decision) or final and permanent. For examples of particular types see freezing injunction and search order.

Inspection

A party to whom a document has been disclosed and for which there is no claim for privilege has the right to inspect that document and may request a copy if he undertakes to pay reasonable copying charges.

Interim application

An application to court made after the issue of proceedings and before the trial.

Interim payment

An advance payment on account of the damages a court may hold a Defendant liable to pay.

Legal aid

Public funding for criminal and civil litigation provided by the Legal Aid Agency, an executive agency of the Ministry of Justice.

Letter of claim

Letter from the Claimant or his solicitor to the prospective Defendant or his solicitor setting out details of the claim before issue of legal proceedings. The information this should contain is set out in the relevant pre-action protocol or, if there is none, the Practice Direction - Pre-Action Conduct and Protocols.

Limitation period

The time within which a person who has a right to claim must start court proceedings. For example, the limitation period is 6 years for contract and tort claims except those for personal injury, where the limitation period is 3 years.

Litigation friend

The person who conducts legal proceedings on behalf of a child or protected party (a party who lacks the capacity to conduct the proceedings). See CPR 21 for special provisions concerning these types of litigant.

Offer to settle

An invitation by one party to another to dispose of a claim on specified terms. An offer made in accordance with CPR 36 has costs consequences - see CPR 36.13 and 36.17.

Particulars of Claim

The Claimant’s first detailed Statement of Case, filed and served with the Claim Form or within 14 days thereafter. CPR 16 sets out matters which must be included.

Practice Directions

These supplement the CPR and need to be read in conjunction with each Rule. The Practice Direction for a particular Rule will contain detail not included in the Rule itself.

Practice Form

A form specified by a Practice Direction to be used for a particular purpose in proceedings.

Pre-action protocol

A statement of understanding between legal practitioners and others, annexed to the CPR, setting out the information to be provided and steps to be taken by the parties to a dispute before issue of legal proceedings and with which the court will expect parties to have complied. This is to encourage a ‘cards on the table’ approach to disputes and to enable each party to assess the strengths and weaknesses of their case before starting legal proceedings.

Preferred county court hearing centre

The centre the Claimant specifies on his Claim Form as that in which it would...